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High Court rules in favour of Earthlife Africa in South Africa’s first climate change case

8th March 2017

By: Kim Cloete

Creamer Media Correspondent

     

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The North Gauteng High Court has ruled in favour of environmental justice organisation, Earthlife Africa (ELA), on the basis that the climate change impacts of the proposed Thabametsi coal-fired power station, were not properly considered.

In South Africa’s first climate change court case, ELA had challenged a decision by Environmental Affairs Minister Edna Molewa to reject the organisation’s appeal against the environmental authorisation granted to the power station.

The environmental authorisation was granted by the Department of Environmental Affairs (DEA) although there had been no comprehensive assessment of the climate change impacts of the 557.3 MW power station, in Limpopo.

Judge John Murphy has ordered Molewa to reconsider the appeal. She now has to take into account a full climate change impact assessment report, as well as public comments on that report.

Makoma Lekalakala of the ELA has welcomed the judgment.

“It sends a strong message to government and to all developers proposing projects with potentially significant climate change impacts in South Africa that permission cannot be given for such projects unless the climate change impacts have been properly assessed.

“South Africa is a water-stressed country, and the Waterberg, where the power station will be located, is a particularly water-stressed area. Climate impacts are a big deal for communities and farmers who depend on the limited water available,” said Lekalakala.

During the court case, lawyers for the DEA had argued that, while climate change was a relevant factor to consider, the regulatory regime did not currently require a climate change impact assessment as a prerequisite for granting an environmental authorisation.

In October 2016, Thabametsi was awarded preferred bidder status in South Africa’s Coal Baseload Independent Power Producer Procurement Programme (CBIPPPP). The power station is owned by a consortium including Japan’s Marubeni – which is the lead developer – as well as Kepco, diversified miner Exxaro Resources, Royal Bafokeng Holdings, KDI, Tirisano and the Public Investment Corporation. Coal will be sourced from Phase 1 of Exxaro’s Thabametsi’s mine.

The power station is intended to be in operation until at least 2061.

The CBIPPPP preferred bidders are required to obtain environmental authorisation from the DEA before they can start construction and operation of their proposed power stations. Thabametsi had applied for and was granted the environmental authorisation. 

ELA had appealed to Molewa, calling for a climate change impact assessment for the power station. The Minister did so, but Earthlife Africa contested the fact that she did not refer Thabametsi’s application back to the DEA to make a fresh decision about the authorisation thereafter.

ELA contends that this was “unlawful, irrational and unreasonable”.

The environmental justice organisation argued that a climate change impact assessment is needed before consideration is given to granting a coal-fired power station an environmental authorisation.

“This would allow decision-makers to determine whether a power station should be allowed to be constructed at all and, if allowed, what kind of conditions and safeguards should be imposed to limit its climate change impact over its 40-year lifetime.”

The DEA had argued that the impacts of climate change were most appropriately dealt with through the Air Quality Act as part of its air emission licensing process. The process is managed by municipalities and not the DEA.

Lawyers for the department argued that the decision to grant the environmental authorisation to Thabametsi in the absence of a climate change impact assessment was compatible with South Africa’s domestic policies, guidelines and regulations.

Thabametsi’s legal team argued that ELA’s challenge to the outcome of the internal appeal was “based on a fundamental misreading of the Minister’s decision”.

“Properly understood, that decision accepted that climate change had been adequately considered for the purposes of the environmental authorisation, but called for a climate change impact assessment to be undertaken for future use.”

The outcome of South Africa’s first climate change court case could set an important precedent.

Nicole Loser, attorney for the Centre for Environmental Rights, which submitted comments to the court on behalf of the ELA, said a climate change assessment required far more than just an assessment of the proposed project’s greenhouse-gas (GHG) emissions.

“Climate change is going to have significant impacts for South Africa’s water availability and will result in extreme weather events such as floods and droughts. We are very relieved that the court has recognised the need for an assessment of the power station’s contribution and exposure to these impacts.”

Thabametsi’s reports, prepared by Savannah Environmental, indicate that its power station would emit the equivalent of 8.2-million tons of the GHG, carbon dioxide, a year.

The update to the Integrated Resource Plan, developed by the Department of Energy, envisages that coal-fired power will continue to contribute a sizeable portion of South Africa’s energy supply.

Edited by Creamer Media Reporter

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